Tuesday, January 28, 2014

Information to Obtain need not be commissioned by Justice of the Peace

R. v. D.G., 2014 ONCA 75:

[5]          In this case, the ITO of P.C. Feizal Rhab was commissioned by Shirley Atkinson, a Commissioner of Oaths for the Waterloo Regional Police Service.  The warrant was then issued by Justice of the Peace Legate Exon.

[6]          The trial judge ruled that an Information to Obtain a search warrant may be sworn before a commissioner for oaths.

[7]          The appellant contends that this step in the process violates s. 487 of theCriminal Code.  This breach resulted in an unlawful search contrary to s. 8 of theCharter.  Accordingly, the appeal should be allowed and the appellant should be acquitted.

[8]          We do not accept this submission.  There is nothing in the wording of s. 487(1) of the Code requiring that the information on oath must be sworn by a justice; rather s. 487(1) provides that a justice must issue the warrant.

[9]          The role of a justice commissioning an oath comes into play only by virtue of the wording of Form 1.  Section 32 of the Interpretation Act, R.S.C. 1985, c. I-21, provides that "[w]here a form is prescribed, deviations from that form, not affecting the substance or calculated to mislead, do not invalidate the form used."  Section 849 of the Criminal Code permits forms in the Criminal Code to be "varied to suit the case".  That is what has happened in this case.  Form 1 has been amended in the Kitchener area (as it has been amended in other regions in Ontario and elsewhere in Canada) to permit commissioners of oaths to commission ITOs.  This is entirely appropriate and does not alter the essential point of s. 487(1), namely, that a justice must consider and issue the search warrant based on sworn evidence.

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